Comity, Family Finances, Autonomy, and Transnational Legal Regimes

Abstract

The doctrine of comity in Anglo-American private international law jurisprudence requires a court to justify a refusal to recognize family financial arrangements arising from activities in a foreign country. The justification usually advanced is public policy. This article examines the contours of the interface between the demands of comity and the justifications of public policy, against the backdrop of a case in which an American state court declined to recognize a strict title property regime flowing from a marriage contract entered into by a Muslim couple in the course of an arranged marriage in Pakistan. In particular, the article focuses on three key concerns of public policy – the ‘fairness’ of the foreign process; the actor's ‘choice’; and the ‘content’ of the foreign arrangement. With the parties’ autonomy increasingly respected in domestic financial arrangements – particularly in the context of prenuptial agreements – the article argues that such respect ought to be extended to foreign arrangements as well, except to the extent that the foreign regime adversely impacts the state's own interests, as distinct from the domestic jurisdiction's perception of the parties' interests.